1. Apportioning copyright damages: the case of
‘Blurred Lines’
Doug Bania*
Most of the existing literature on copyright infringement
is concerned with the valuation of intellectual property
rather than the apportionment of the value that is directly
attributable to the intellectual property asset at issue.
Further, few of the currently proposed IP valuation
methods and little of the literature addressing the deter-
mination of damages appears directly applicable to the
case of copyright in the context of artistic productions.
Within the creative arts, recorded music offers a particu-
larly complex and interesting case within which to
explore this issue, as different portions of the relevant
copyright to the recorded song may be held by different
persons. The apportionment of potential damages there-
fore requires two steps or determinations. The first takes
place in what we might refer to as the work’s legal or in-
tellectual property context: how current copyright law
divides up the copyright to that work and which part or
parts of the copyright are relevant to charges of infringe-
ment. The second takes place within the work’s econom-
ic or non–intellectual property context: how various
factors contribute to that work’s financial value.
To demonstrate the multiple factors involved in the
process of making these determinations, this article
examines the case of the recent highly publicized charges
of copyright infringement made against the creators of
the hit song ‘Blurred Lines’, Pharrell Williams, Robin
Thicke and Clifford Harris, Jr, by the estate of the late
Marvin Gaye, Jr. This analysis is based on an expert
report on the allocation of potential damages conducted
by our consulting firm at the behest of the law firm
representing the creators of ‘Blurred Lines’. We were
asked not to determine whether any copyright infringe-
ment actually occurred, but rather to calculate what per-
centage of the earnings of the song would be attributable
to such infringement if it were found to have indeed
taken place. Following a brief description of the history
of and parties in this case, the article discusses the
methods used to apportion the value of the copyrighted
intellectual property within a legal and economic
context.
* Email: dougbania@nevium.com.
940 ARTICLE Journal of Intellectual Property Law & Practice, 2015, Vol. 10, No. 12
# The Author(s) (2015). Published by Oxford University Press. All rights reserved. doi:10.1093/jiplp/jpv175
The author
† Doug Bania (CLP, MA) is a principal of Nevium,
an intellectual property consulting firm, and
member of the American Bar Association. He has
more than a dozen years’ experience in analysing
and valuing intellectual properties and intangible
assets, including song royalties, trade marks, pub-
licity rights, internet assets, and copyrights in a
variety of contexts.
This article
† Using data collected by the author’s firm as con-
sultants in the recent ‘Blurred Lines’ case, in
which the family of Marvin Gaye, Jr accused Phar-
rell Williams, Robin Thicke and Clifford Harris, Jr
of infringing musical elements of Gaye’s ‘Got to
Give It Up’, this article addresses the relatively
neglected issue of the apportionment of value that
is directly attributable to an intellectual property
asset.
† Such apportionment is particularly complex in
the case of recorded music, which may include
multiple copyright holders and requires two steps
described in the article. The first is determining
what portion of the copyright to a work is relevant
to charges of infringement; the second is deter-
mining the multiple factors that contribute to the
financial success of that work.
† The author argues that in this case, in which
the supposedly infringed musical elements are
covered by only half of one of the two relevant
copyrights and in which much of the song’s value
is demonstrably attributable to non-copyright
factors, considerably less than a quarter of the
value of the ‘Blurred Lines’ could rightfully be
attributed to the contested elements protected by
Gaye’s copyright.
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2. ‘Blurred Lines’ and the alleged
infringement
The case for which this report was prepared was a
lawsuit by the three artists who created the song against
publicized charges by Frankie Christian Gaye, Nona
Marvisa Gaye and Marvin Gaye, III, alleging that
‘Blurred Lines’ so closely resembled certain musical ele-
ments of Marvin Gaye’s 1977 ‘Got to Give it Up’ as to be
liable for copyright infringement.1
In their complaint,
the creators of ‘Blurred Lines’ stated that they had the
utmost respect for Marvin Gaye and argued that, by
alleging that their work had the same feel or sound as
the earlier song, the Gaye family was trying to claim
ownership of an entire genre rather than a specific work
(although a trial jury subsequently found the artists
liable for copyright infringement, the judge later reduced
the awarded damages and the case is expected to be
appealed.)
The parties
Pharrell Williams, Robin Thicke and Clifford Harris, Jr
(plaintiffs and performing artists) collectively wrote,
composed, produced and published the song ‘Blurred
Lines’; Williams also served as the producer of the sound
recording of both the song and Thicke’s album of the
same name. Each of the plaintiffs was already an estab-
lished artist in the field and had contributed to several
hit songs and albums before the release of ‘Blurred
Lines’. Frankie Christian Gaye, Nona Marvisa Gaye and
Marvin Gaye, III (the defendants) are the children of
Marvin Gaye, Jr (‘Gaye’) and holders of the copyright to
Gaye’s musical composition ‘Got to Give it Up’. Univer-
sal Music Group (UMG) is a global leader in music
recording, publishing and merchandising and the parent
company of Interscope Records and a partner in Star
Trak Entertainment, which acted as the label companies
for the album Blurred Lines. Although UMG was not ori-
ginally a plaintiff in the case and was not accused of
infringement by the defendants, it played a major role in
the financial success of the recording and provided
much of the information on which our report was based.
Key events
According to the timeline of key dates related to the song
compiled as part of our report, ‘Blurred Lines’ became
popular and achieved a large volume of sales within a
relatively short period of time. In the five months
between March 2013 and August 2013, the music videos
and the single for ‘Blurred Lines’ were released, sales
peaked, claims that the song had copied Marvin Gaye’s
‘Got to Give it Up’ surfaced, and a pre-emptive com-
plaint was filed by the performing artists. During this
period, ‘Blurred Lines’ received a great deal of media at-
tention regarding the raciness and alleged misogyny of
the accompanying music videos, and Thicke, Williams
and Harris appeared in public and on social media
numerous times to promote or perform the song.
Thicke debuted the unrated version of the ‘Blurred
Lines’ music video featuring three topless women in
skin-coloured thongs on his YouTube channel. When it
was pulled from YouTube because of its explicit content,
Thicke uploaded the video to VEVO.com and a tamer
version of the video featuring the three women wearing
clothes was posted on YouTube. On 15 April 2013,
UMG’s marketing team started promoting the song to
Rhythm Radio stations, later followed by Pop and Urban
radio outlets. Marketing activities for the song and
album began to increase in mid-May, corresponding
with a performance of the song by the artists on NBC’s
The Voice, the first of many nationally televised perfor-
mances of ‘Blurred Lines’. These marketing activities
peaked in July 2013, corresponding with several inter-
views and live performances in connection with the
release of Thicke’s Blurred Lines album on 30 July.
Roughly two weeks later, on 15 August 2013, the plain-
tiffs filed a legal complaint in response to public com-
ments made by the defendants citing Gaye’s influence on
the song.
According to data collected in October 2014, more
than 90 per cent of the total purchases of ‘Blurred Lines’
had occurred by the end of January 2014 and, by that
spring, most of the marketing activities related to the
song and album had slowed and the song fell off most of
the major song charts.
IP-related factors in the value of
‘Blurred Lines’
Perhaps the most important point to keep in mind when
attempting to determine how much of the financial
success of an artistic creation is attributable to the own-
ership of its copyright is that the express purpose of
copyright protection is to allow the creator of an original
concept or expression an exclusive ability to benefit from
the use or expression of that creation for a given period
of time, which does not in itself entitle its holder to
any economic benefit from that creation. Although this
1 Williams and others v Bridgeport Music Inc and others, Case No 2:13-cv-
06004, US District Court for the Central District of California.
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3. exclusive right allows the copyright holder to seek
compensation or damages, should another party make
commercial use of the copyright-protected expression
without permission, other assets and resources must be
invested before revenue can be generated from the sale
of the artistic creation.
The author of a novel, for instance, typically cannot
reap financial benefits from that creation until a publish-
er invests the necessary capital to print, distribute and
promote it in book form. In the music industry, a song-
writer who writes a song does not make money simply
from the act of writing or committing the music and
lyrics to paper. Rather, to benefit financially from their
creations, songwriters generally employ a publisher or
agent to promote the song to other artists or record
the song themselves and work with a record label to
promote the resulting sound recording. Recording
artists generally rely on the record label’s financial
resources, marketing and promotional skills, and rela-
tionships with radio, television and other media outlets
to generate economic benefit from their songs and the
recordings of them. In both these forms of publication
and distribution, the initial creator of the intellectual
property typically shares any profits generated by the
work with those other contributors to its success.
A notable way in which music presents a more complex
case than most other creative products, however, is that
every recorded song is awarded two copyrights, which
may or may not be held by the same artist, and often only
a portion of one of those two copyrights may have been
infringed. These two copyrights are
† the composition copyright, which covers the compos-
ition of a song’s music and lyrics.
† the sound recording copyright, which covers the
recording of the composition onto a re-playable
medium.
Together, these two copyrights protect the recorded
versions of both Gaye’s ‘Got to Give it Up’ and the per-
forming artists’ ‘Blurred Lines’. In this case, the legal pro-
ceedings were limited to the alleged use of musical
elements related to the composition of the song and
made no claim that ‘Blurred Lines’ infringed any
element of the sound recording of ‘Got to Give it Up’.
The claims of the defendants in this case were according-
ly limited to only one of the two copyrights to the song
and thus to only half of the economic benefits achieved
from the creation, composition, recording, performance,
distribution and sale of ‘Blurred Lines’.
Further complicating the copyright issue in the case
of a musical composition is that the creator of the lyrics
and the creator of the music or melody may not be the
same person. In instances in which a composition has
been created by multiple artists, ownership of that com-
position is generally split evenly between the authors of
the lyrics and the authors of the music/melody. In this
case, since the lyrics of ‘Blurred Lines’ were not at issue
in the alleged copyright infringement, the musical ele-
ments allegedly infringed by the plaintiffs included only
one half of the elements covered by the composition
copyright for ‘Got to Give it Up’, or only roughly one
quarter of the song’s total copyright protection.
In short, based on the legal parsing of the copyright
protection afforded to recorded musical compositions
and given that the defendants alleged that only a portion
of the components of ‘Blurred Lines’ imitated ‘Got to
Give it Up’, only a fraction of the economic benefits
received by the performing artists can be legally attribu-
ted to the alleged act of infringement. As this discussion
has shown, any use of the claimed musical elements
therefore cannot be claimed to have contributed more
than a quarter of the success of ‘Blurred Lines,’ even if
the composition of ‘Blurred Lines’ had infringed 100 per
cent of the composition of ‘Got to Give it Up’. Further,
the overwhelming contribution of non-IP related factors
discussed below would strongly argue that the actual
contribution of the claimed musical elements to the
success of ‘Blurred Lines’ was in fact significantly less
than 25 per cent.
Non-IP factors in the value of ‘Blurred
Lines’
The clearest evidence that intellectual property protected
by copyright cannot be considered solely responsible for
the commercial or financial success of a song is that
some songs achieve widespread popularity and generate
substantial revenues and profits for their artists, produ-
cers and record labels, and some songs do not, despite
being composed of the same elements and protected by
equivalent copyrights. In this case, the reported revenues
generated by ‘Got to Give it Up’ in 2012 and 2013 were
$74 412 and $82 291, respectively. Between 1 April 2013
and 30 September 2014, in comparison, ‘Blurred Lines’
had generated more than $4.2 million. In 2013, ‘Blurred
Lines’ topped the 2013 Billboard Hot 100 list for 12
weeks and was ultimately ranked the number 2 song of
the year. As of 5 October 2014, the single had been pur-
chased over 7.2 million times and the videos had been
viewed approximately 383 million times.
Given the difference in revenues earned by the two
songs during the period in question and that intellectual
properties do not generate economic benefits by them-
selves, much of the success and economic value of
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4. ‘Blurred Lines’ must be attributed to the human and
financial capital invested in its success. This capital includes
(i) the talent, skill and reputation of the artists, which is
very difficult to measure objectively, and (ii) the impact of
promotion, media attention and social media, which is
easier to measure and was the subject of our report.
To identify the non-IP factors that contributed to the
song’s economic success, we conducted the following:
† Interviews with employees of UMG;
† Review of weekly sales data obtained from SoundS-
can;
† Review of news and media events related to the song;
† Collection and analysis of the marketing and promo-
tional events; undertaken by UMG and the perform-
ing artists between March 2013 and October 2014;
† Review of the ‘Blurred Lines Marketing Plan’ devel-
oped and implemented by UMG;
† Review of radio spin data;
† Review of data on YouTube views of the videos and of
social media activities related to the song;
† Collection and analysis of social media activities
related to the song.
Based on this information, we attempted to identify those
factors or events that contributed to increased sales
of ‘Blurred Lines’ as represented by the SoundScan data.
Factors that were followed by a change in the volume of
scans were identified as having had a significant impact
on the sales of ‘Blurred Lines’. SoundScan is an online
service that tracks the sales of music and video releases via
barcode scans at checkout lanes and Internet downloads.
The SoundScan data therefore represent the volume of
units sold per week and are widely used in the music in-
dustry to measure the relative success of a song or album,
including determining Billboard rankings. This analysis
identified several non-IP, or non-copyright, factors that
directly contributed to the success of ‘Blurred Lines’,
which are discussed below:
† Awareness created by the video of the song;
† Marketing activities undertaken by UMG to promote
the song;
† Radio play and media attention given the song;
† Social media activities related to the song.
Video views and sales
The music videos created by Thicke were released before
release of the single and before either UMG or Star Trak
had invested in promoting the song. In February 2013,
prior to the videos’ release, Thicke’s YouTube channel
had received 85 865 video views but, by the end of
March 2013, following the release of the ‘Blurred Lines’
video, they had increased to over 1.5 million views. The
unrated version of the ‘Blurred Lines’ video was released
on YouTube and taken off shortly thereafter, sparking
Thicke to tweet on 30 March that ‘YouTube took down
the Unrated version of #BLURREDLINES because it was
too hot! You can still view it here on @VEVO.’ The
resulting attention undoubtedly led to increased views,
media interest and sales.
Although the audience of Thicke’s YouTube channel is
typically 55 per cent male and 45 per cent female, in
March 2013 the male portion of Thicke’s audience
increased to 86 per cent and the viewership of the videos
was 88 per cent male, suggesting that the increase in
traffic was due more to the visual content of the videos
than to the lyrics or musical elements of the song.
In addition to creating initial awareness for the song,
the videos appear to have maintained a high level of
public awareness for ‘Blurred Lines’ during 2013 and to
have sparked or played a role in many of the marketing
activities that followed. A comparison of the number of
viewer reviews of the video on iTunes and the SoundS-
can data shows that peaks and declines in the two data
sets appear to correspond, indicating a positive correl-
ation between consumer awareness surrounding the
videos and the sales of the song. In short, the evidence
indicates that the videos made a substantial contribution
to the success of ‘Blurred Lines’, a conclusion echoed by
a member of the marketing department at UMG: ‘I
believe that “Blurred Lines” became a phenomenon with
an extremely racy video that catapulted all of the oppor-
tunities going forward.’
Marketing events and sales
Following the release of the videos, UMG’s marketing
and promotions departments took primary responsibil-
ity for the marketing of ‘Blurred Lines’. According to the
interviewed UMG employees, this was a rare case in which
the video paved the way for future marketing efforts and
the success of a recorded song. To further support the
song, UMG utilized a push marketing strategy involving
print and live interviews, television and radio appearances,
concert tours and live performances, internet marketing,
radio plays, social media, retail promotions, street market-
ing, word of mouth and internet blogs. UMG and Thicke
also hired third-party firms to manage publicity, search
engine optimization (SEO), internet marketing, visual
asset housing facility, web banner design and social media
management for marketing support. According to UMG
employees, the marketing campaign was one of the most
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5. robust and labour-intensive campaigns on which they had
ever worked. According to documents provided by UMG,
the organization promoted the song and album with 240
individual events and an investment of roughly $3.6
million dollars in marketing efforts.
As can be seen in Figures 1A and 1B, a comparison of
the SoundScan data and the timing and volume of key
marketing events related to ‘Blurred Lines’—including
live television appearances and performances, radio inter-
views, promotional events, social media events, perfor-
mances by the performing artists in major markets in the
United States and a commercial for another product based
on the theme of the videos—revealed that these marketing
activities were closely followed by increases in sales. UMG’s
marketing and promotional efforts were also instrumental
in arranging a performance of the song by the artists on
The Voice on 14 April 2013, after which weekly sales
increased from fewer than 70 000 to over 200 000 units.
Throughout June 2013, weekly sales figures increased
following interviews and live performances by the
artists. A short period of decline in the SoundScan data
in July 2013 coincided with a dip in marketing events
and was halted following Thicke’s interviews with Ryan
Seacrest, Vanity Fair, and Howard Stern on Sirius Radio
Figure 1. Correlation between marketing events and SoundScan sales data.
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6. and performances of the song on The Today Show, The
Jimmy Fallon Show, The View and America’s Got Talent, all
of which were coordinated by UMG; sales rebounded
from 312 000 to 405 000 units the week after these events.
These events were followed by no real key marketing
events for roughly three weeks, and the absence of mar-
keting activities corresponded to declining sales during
that period. In late 2013, a few short-lived periods of sales
increases corresponded with the dates that Thicke was
performing in major U.S. markets and making appear-
ances on nationally televised programs. A comparison of
the SoundScan data to the amount of UMG’s marketing
expenditures for each month shows a similar pattern.
When marketing activities slowed, sales volumes declined.
Radio play, media attention and sales
We also analysed the radio spin history for ‘Blurred
Lines’ provided by UMG and compared SoundScan data
to the number of times the song was first spun on a
given radio station and with the size of the market in
which the song was first played on those radio stations.
As shown in Figure 2, it appears that initial radio spins
and the size of the radio markets in which they occurred
were quickly followed by sales growth. This radio expos-
ure and the related economic success of the song was the
result of the sales skills and closing ability of UMG’s
marketing team, which also conducted extensive target
market studies to determine where to focus their atten-
tion to maximize the return on their efforts.
The number of times ‘Blurred Lines’ was mentioned
in the media also provides an indication of the reach of
the marketing and promotional efforts related to the
song. Reviewing a 470-page compilation of media and
press clippings regarding ‘Blurred Lines’, which ranged
from press releases to articles in People magazine and the
New York Post, we found that, during April 2013, UMG
had uncovered 11 mentions of Robin Thicke and/or
‘Blurred Lines’ in the media, but that number rose to
almost 140 following the artists’ performance of the
song on The Voice in May, corresponding with the in-
crease in sales tracked by SoundScan.
Accordingly, the data on radio play and media at-
tention also support the contention that marketing and
promotional activities made a direct and substantial
contribution to the financial success of the song.
Social media and sales
A review of the large volume of activity related to ‘Blurred
Lines’ on Twitter, Facebook, and YouTube also reveals a
high correlation between the volume of social media
attention and the volume of sales. Our review of UMG’s
marketing documents and of statements by UMG
employees indicated that much of the social media activ-
ity related to the song was consciously created to increase
awareness of the song and lead social media users to pur-
chase it and the Blurred Lines album on iTunes.
As shown in Figure 3, a comparison of the SoundScan
data with the number of first-round ‘re-tweets’ with the
hashtag #blurredlines and of times Twitter users tagged a
Tweet from one of the performing artists including the
hashtag #blurredlines as a ‘favourite’ indicates the same
general pattern: the more activity on Twitter, the greater
Figure 2. Correlation between radio play and SoundScan sales data.
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7. the sales of the song. Both sales and the Twitter chatter
peaked during July 2013. A similar pattern was found by
comparing sales records to the number of ‘likes’ received
by a post from Thicke’s Facebook mentioning the term
‘Blurred Lines’.
To simplify and track the process of internet marketing,
UMG management utilized smartURL, an online service
whose Real-Time Stats tool allows subscribers to view the
performance of their links on a daily basis. UMG inserted
two different smartURL hyperlinks, one for the album and
one for the song, into the majority of the Internet and
social media accounts related to ‘Blurred Lines’ that direc-
ted users to iTunes, where they could purchase the song or
the Blurred Lines album. These links resulted in 899 496
clicks to iTunes. As might be expected, this data set and
the SoundScan data followed nearly identical patterns: the
more clicks the ads received, the greater the sales.
That the timing of social media activities corresponds
with higher sales volumes indicates that social media
activity also greatly contributed to the success of ‘Blurred
Lines’.
Making sense of multiple factors
As the analysis above demonstrates, most of the financial
success of ‘Blurred Lines’ can be attributed to a combination
of multiple factors beyond the claimed musical elements of
the song itself, including substantial contributions by the
videos of the song, extensive marketing and promotional
efforts, radio play and media attention, and social media dis-
cussion and promotions (this finding may have been the
basis on which the judge in the case subsequently approved
adding the involved record companies to the liable parties
and ruled that Williams had not been shown to be a ‘prac-
tical partner’ in the song’s success.) Although the individual
contributions of each of these various expenditures of
human and economic resources undoubtedly overlapped
and cannot be determined with great accuracy, their demon-
strated impact leaves little doubt that, even if the plaintiffs
had infringed n the defendant’s copyright over the claimed
musical elements of the song’s composition, those elements
played only a small part in the financial success of ‘Blurred
Lines’, and therefore the defendants should be entitled to
only a fraction of any economic benefits derived from its
creation, production, distribution, and sale (this rea-
soning seems reflected by the judge’s later reducing
Williams’s share of total damages to approximately 10
per cent.) Further, the increasing impact that oppor-
tunities for mass marketing offered by the Internet
and social media can have on the success and value of
products within today’s music industry suggests that
the apportionment of the value of copyright has
become far more complex than ever imagined by the
original framers of U.S. copyright law.
Figure 3. Correlation between Twitter activity and SoundScan sales data.
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